R v O'Brien - [2006] QCA 482

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Brien [2006] QCA 482

PARTIES:

R
v
O’BRIEN, Robert Michael
(applicant/appellant)

FILE NO/S:

CA No 259 of 2006
SC No 173 of 2006
SC No 649 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

de Jersey CJ, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court,
Jerrard and Holmes JJA concurring as to the orders made,
de Jersey CJ dissenting in part

ORDER:

1. Allow the application for leave to appeal
2. Set aside sentences on counts 2, 3, 10, 11 & 12
3. Vary the sentences on counts 1, 4, 7, 16 and 17 by, in respect of count 1, deleting the recommendation that the applicant be eligible for parole after 2 years 8 months, and in respect of all of those counts, fixing the applicant's parole eligibility date as 15 July 2008
4. The declaration that the applicant has already served 36 days of his sentence on all counts between 22 January 2004 and 27 February 2004 remains

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where applicant convicted of a number of drug-related offences including trafficking, supplying and possession – most significant sentence was eight years imprisonment with recommendation for parole after 2 years and 8 months on trafficking count – exemplary life prior to offending, significant co-operation and rehabilitation – whether sentence should be reduced

R v Rizk [2004] QCA 382; CA No 224 of 2004, 15 October 2004, cited
R v Kashton [2005] QCA 70; CA No 416 of 2004, 17 March 2005, cited
R v Barton [2006] QCA 367; CA No 25 of 2006, 22 September 2006, considered
R v Bradforth [2003] QCA 183, cited
R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, cited
R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered

COUNSEL:

M J Byrne QC for the applicant
B G Campbell for the respondent

SOLICITORS:

Gilshenan and Luton for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant seeks leave to appeal against sentences imposed on him after a plea of guilty on one count of trafficking in methylamphetamine,
3,4-methylenedioxymethamphetamine (ecstasy) as I will refer to it, and cannabis sativa, five counts of supplying ecstasy, four counts of possessing a dangerous drug in excess of two grams, seven counts of possessing a dangerous drug simpliciter and one count of possessing things used in connection with supplying a dangerous drug.

In addition there were 12 summary charges: three of possession, possessing a thing for use in connection with the supply of a dangerous drug, two of possessing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Brien

Details

AGLC: R v O'Brien [2006] QCA 482
Case: [2006] QCA 482
Decision Date: 20 November 2006

CaseChat Overview and Summary

The applicant, O'Brien, appealed against his sentence for drug-related offences including trafficking, supplying, and possession. The court of appeal considered the appeal and the application to reduce the sentence. The primary issue before the court was whether the sentence, particularly the eight-year imprisonment term with a parole eligibility recommendation after 2 years and 8 months, was appropriate given the applicant's exemplary life before the offending, significant co-operation during the proceedings, and efforts towards rehabilitation. The court needed to determine if the sentence was just and whether a reduction was warranted.

The court examined the principles of sentencing and the factors that influenced the original sentence. It noted the applicant's background and the nature of his co-operation, which had not been fully considered at the original sentencing. The court acknowledged the seriousness of the offences but also recognised the applicant's efforts to rehabilitate and cooperate with authorities. The court concluded that the sentence should be reduced to reflect these mitigating factors appropriately. The appeal was allowed, and the sentences on several counts were set aside or varied to account for the applicant's pre-sentencing conduct and rehabilitation efforts.

The court set aside the sentences on counts 2, 3, 10, 11, and 12, and varied the sentences on counts 1, 4, 7, 16, and 17. Specifically, it deleted the recommendation for parole eligibility after 2 years and 8 months on count 1 and fixed the parole eligibility date for all these counts as 15 July 2008. The court also confirmed that the applicant had already served 36 days of his sentence between 22 January 2004 and 27 February 2004, which would remain in effect. The decision recognised the applicant's efforts towards rehabilitation and the need for a sentence that reflected his background and conduct.

Orders

Orders of the court

1. Allow the application for leave to appeal

2. Set aside sentences on counts 2, 3, 10, 11 & 12

3. Vary the sentences on counts 1, 4, 7, 16 and 17 by, in respect of count 1, deleting the recommendation that the applicant be eligible for parole after 2 years 8 months, and in respect of all of those counts, fixing the applicant's parole eligibility date as 15 July 2008

4. The declaration that the applicant has already served 36 days of his sentence on all counts between 22 January 2004 and 27 February 2004 remains

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v O’Brien [2006] QCA 482
PARTIES:	R v O’BRIEN, Robert Michael (applicant/appellant)
FILE NO/S:	CA No 259 of 2006 SC No 173 of 2006 SC No 649 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	20 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2006
JUDGES:	de Jersey CJ, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, Jerrard and Holmes JJA concurring as to the orders made, de Jersey CJ dissenting in part
ORDER:	1. Allow the application for leave to appeal 2. Set aside sentences on counts 2, 3, 10, 11 & 12 3. Vary the sentences on counts 1, 4, 7, 16 and 17 by, in respect of count 1, deleting the recommendation that the applicant be eligible for parole after 2 years 8 months, and in respect of all of those counts, fixing the applicant's parole eligibility date as 15 July 2008 4. The declaration that the applicant has already served 36 days of his sentence on all counts between 22 January 2004 and 27 February 2004 remains
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where applicant convicted of a number of drug-related offences including trafficking, supplying and possession – most significant sentence was eight years imprisonment with recommendation for parole after 2 years and 8 months on trafficking count – exemplary life prior to offending, significant co-operation and rehabilitation – whether sentence should be reduced R v Rizk [2004] QCA 382; CA No 224 of 2004, 15 October 2004, cited R v Kashton [2005] QCA 70; CA No 416 of 2004, 17 March 2005, cited R v Barton [2006] QCA 367; CA No 25 of 2006, 22 September 2006, considered R v Bradforth [2003] QCA 183, cited R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered
COUNSEL:	M J Byrne QC for the applicant B G Campbell for the respondent
SOLICITORS:	Gilshenan and Luton for the applicant Director of Public Prosecutions (Queensland) for the respondent